This story was originally published by High Country News and is reproduced here with permission.  

In the fall of 2015, Tavis Rogers told his son, Nathan, that if he kept his grades up, he’d take Nathan on his first mule deer hunt. Nathan held up his end of the deal, and on Halloween, the pair left their home outside of Steamboat Springs heading to a stretch of Bureau of Land Management land in the northwestern part of Colorado.

They had no luck that morning, merely spooking a few deer. There were a lot of hunters out, Rogers, an experienced big game rifle and bow hunter, recalled, so they set off in search of a better spot. After glimpsing a few does alongside a state highway, they pulled over and checked their map. The parcel was marked as state land; no signs indicated it was off-limits, and Rogers says he’d seen hunters in the area before. The terrain was mostly open with some cedar stands and scattered scrub. Father and son crossed a creek and spotted a large buck up a hill.

“(Nathan) killed a beautiful deer with one shot,” says Rogers, an independent engineer who works primarily with mining groups. “We took pictures. I showed him how to bone it out and break it down on the spot. We were all happy.”

Then, he recalled, it all became a nightmare.

Rogers and his son were stopped by a Colorado Parks and Wildlife game warden, who wrote them a ticket and confiscated the deer. They had unintentionally wandered onto a chunk of Colorado state trust land. This land belongs to Colorado’s citizens, but it is not public in the way most people tend to think of public land. It occupies some middle ground between public and private — particularly in Colorado. Rogers found this out the hard way: He was charged with trespassing and illegal possession of a deer and fined $1,500. He spent more than $5,000 in legal fees, he says, on a lawyer he described as “useless.”

Elsewhere, Rogers might not have been in trouble. In Wyoming, a valid state hunting permit — which his son had — applies to trust land as well. But when it comes to public access to state trust land, Colorado is an outlier. The state land in question is considered private, hence the trespassing charge.

“In over 45 years of fishing and hunting in multiple states and countries, I never had a wildlife violation,” Rogers says. “I was wrong, and I was upset about that, because I certainly wouldn’t have taken my son on his first mule deer hunt and said, ‘Let’s go trespass.’ ”

Now, a years-long effort to expand the public’s ability to hunt and fish on Colorado state trust lands is gaining momentum, thanks to the state’s increasingly dynamic outdoor recreation economy and an access-focused new governor.

The concept of trust land dates back to the General Land Ordinance of 1785, which decreed that states entering the Union would be given land that, in turn, would be used to build revenue for public institutions. Colorado’s 2.8 million acres of state trust land—along with its 4 million acres of mineral assets — help fund K-12 education statewide through leases for agriculture, grazing, oil and mineral development, renewable energy development, and various types of recreation.

About 95 percent of this land is leased for agriculture, under contracts that bring in royalties for the state. The State Land Board oversees these lands with the dual mandate of supporting public schools and ensuring that the land is properly stewarded by leaseholders. Over the past decade, trust lands have raised $1.4 billion for Colorado public schools.

According to the Land Board’s website, Colorado trust lands are not open to the public, except for specific parcels leased for recreation by Colorado Parks and Wildlife. Currently, a little under 500,000 acres is publicly accessible.

In this respect, Colorado stands apart. Most Western states are more open, while still generating significant public revenue from working lands. In Idaho and Oregon, most trust lands are treated like public lands, with no user fees. Wyoming does not charge a recreation fee but limits overnight camping. Many states have variations on this policy, allowing access, with some restrictions. A valid state permit for hunting and fishing applies to state trust land as well as public land in Arizona, Montana, New Mexico, Utah, Washington and Wyoming. In Utah, Arizona and other states, trust lands are occasionally sold, with public parcels suddenly becoming private. Nevada has sold off almost all of its trust land.

In Colorado, the burden of access is on the public: You don’t have to intentionally break the law, or even know the law, to be guilty. The game warden told Rogers that the land in question was leased for private recreation in addition to agriculture, meaning that hunting was allowed there, just not for the public.

This combination of substantial private recreation leasing and the lack of public recreation compared to other states has sparked a broad push to increase Colorado’s public access to state trust land. Tim Brass of Backcountry Hunters and Anglers has spent five years working on the issue. Brass wants greater public access for recreation on Colorado’s state trust land, with policies that better align with those of other Western states to avoid the kind of confusion that got Rogers in trouble. Colorado’s outdoor recreation economy is booming, and advocates argue that increasing state trust land access would allow greater public enjoyment of the outdoors and spread recreation dollars to rural areas, without compromising the Land Board’s mission.

“It’s a huge chance to increase the amount of public access,” he says, “and land that is opened can still be used to raise revenue for the schools.”

The effort took a significant step forward recently. In July, the Colorado Parks and Wildlife commission voted unanimously for a 500,000-acre expansion—effectively double the previous amount—of public access for seasonal hunting and fishing on previously private state trust land parcels, mostly in the eastern part of the state.

Access supporters welcome these changes, but they would not have helped Rogers; the parcel where he and Nathan hunted is likely to remain private even under the new access expansion.

July’s access expansion took years of negotiation between the Land Board and Parks and Wildlife, but state officials say that Gov. Jared Polis’ administration has been keen to expand access. Increasing public access to the outdoors was a key part of his campaign. Polis, who took office in January, made rural economic development a central part of his platform. Hunters and anglers provide an economic boost in rural areas, staying in local hotels and purchasing gas and food. The recent access expansion could be a boon for the eastern plains. Until now, most of the trust land opened to access lay in western Colorado, where hunting is generally better, especially for big game like black bear, elk and deer.

Terry Fankhauser, Executive Vice President of the Colorado Cattleman’s Association, praised the new access policy as a measured approach that balances multiple interests. Trust land parcels are often smaller, he says, and potential impact of unrestricted recreation could be more severe than on vaster stretches of federal public land.

“I’m really sensitive to the impact of recreation,” he says. “It does have to be managed, I think this is a sensible approach that allows for more access but stewards the resource responsibly.”

In the past year, the more than 1,800 agriculture trust land leaseholders received a letter from the Land Board informing them of the process for obtaining an additional recreation lease. Access advocates like Brass worried that trust land was already being scooped up in private recreation leases while the access expansion was still in the works. According to state data, the amount of total land leased for exclusive private recreation has approximately doubled since 2014. In a win for Backcountry Hunters and Anglers, the Parks and Wildlife Commission placed a moratorium on the half-million acres to be opened to the public over the next three years. The state trust lands not included in the access program remain available for private recreation.

Some parcels are simply not suitable for public access; one 40,000-acre parcel near Pueblo is used for testing high-speed trains, according to the Land Board, while another was leased by the military for training after World War II and still contains live ordnance.

Other sizeable parcels, though, are simply held by large landowning families and companies that can have overlapping leases for working lands and recreation. These private recreation leases cost at minimum $2 per acre per year but often run much higher, making them more lucrative than the public access rate. The standard public lease rate is $2 per acre; the recent expansion is half of that. By continuing these leases, the Land Board fulfills its mandate to fund state schools.

“State lands are not necessarily public lands,” Fankhauser says. “It should be said that they’re held in trust for a certain thing.”

It was this concept of trust land that got Tavis Rogers in trouble. If the parcel where his son took the deer had been leased for public recreation, the hunt would have been legal. Instead, he was fined and risked losing his hunting privileges. Rogers says he would prefer a policy that tends towards public considerations, rather than private ones, when it comes to outdoor recreation.

“I think the public is missing out,” Rogers says. “There can still be grazing, but it doesn’t have to be exclusive. Grazing shouldn’t preclude access for hunting and fishing. Why should it? It doesn’t anywhere else.”

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